Posts Tagged ‘Contract with America’

Lloyd Hines, a New York farmer, had no children. His Will left the family farmhouse (where he had lived with his brother for many years) to his niece Sandra Johnson. The rest of his estate he left to his nephew Arne Lih.

In 1991, Mr. Hines became concerned about Medicaid eligibility for possible nursing home care. Someone apparently told him that he should place someone else’s name on his residence to prevent it being taken by the State after his death, and so he asked his attorney to place the farmhouse in joint tenancy with his nephew, Arne Lih. At the time, he also made it clear to his attorney that he did not wish to change his Will.

Mr. Hines apparently did not understand that the joint tenancy meant the farmhouse would pass to Mr. Lih despite his Will, and Mr. Hines’ attorney did not explain this result to him. When Mr. Hines died two months later his niece sued to invalidate the transfer.

The New York court found that Mr. Lih had impliedly promised, while assisting Mr. Hines with his planning, that he would honor the provisions of Mr. Hines’ Will. Although there was no explicit promise to do so, the fact that Mr. Lih was actively assisting Mr. Hines with his affairs and arrangements created a “confidential relationship” which permitted the court to invalidate the joint tenancy.

The actual mechanism by which the deed was invalidated in this case was what is known as a “constructive trust.” Essentially, the court ruled that Mr. Lih was in fact a trustee over the property, which he held for the benefit of Ms. Johnson, and he was ordered to transfer the property to her.Johnson v. Lih, N.Y. Sup. Ct. App. Div., June 29, 1995.

Arizona law contains similar provisions. On the same facts, the result should be expected to be the same.

Congressional Reform Proposals Advance

As Congress debates how to balance the budget, adopt the “Contract with America” and reform welfare, various legislative proposals dealing with Medicare, Medicaid, the Older Americans Act and related issues have steadily advanced through the process. For more information about the specific proposals, see Elder Law Issues, Vol. 3, Issue 16.

Public opinion polling consistently shows that the American public disapproves of efforts to drastically limit Medicaid benefits or to dramatically reshape Medicare. Less well known to the public is the effort to repeal the 1987 Nursing Home Reform Act, a principal source of protection for the quality of nursing home care. Repeal of that Act (ironically, in the very year that regulations were finally made effective) has become a part of both the Senate and House Republican proposals.

The National Citizen’s Coalition for Nursing Home Reform has now published an analysis of the 1987 law, the changes in nursing home care attributable to that Act, the resultant savings in medical costs, and the likely effect of repeal.